Gerrymandering and the Bugman

The Voting Rights Act of 1965 requires that states with a history of discriminatory voting practices (including Texas) receive Justice Department approval prior to making any changes to voting districts within the state. In the case of the Texas redistricting at issue now before the Supreme Court, the districts increased from 30 to 32, but the number of districts deemed to have a majority of racial minorities remained constant at 11.

Prior to the 2004 elections, attorneys within the Civil Rights division of the Department of Justice determined that the DeLay redistricting plan for Texas was discriminatory and likely violated the Civil Rights Act of 1965. (Read here and here for more on the Civil Rights Division split.) Those attorneys were overridden by political appointees at the DoJ — who allowed the redistricting to remain in place for the 2004 elections, despite the internal criticism.

According to the NYTimes, the Justices will hear arguments on the matter on March 1, 2006, with a decision expected in June of that year, right before the 2006 elections kick into high gear.

What sort of impact can be expected for the elections? No one knows for sure. But for Tom Delay, the architect of this current gerrymandering monstrosity, it can’t be good news considering his horrible standing in a district where he is losing in the polls to an unnamed Democratic opponent.

According to a previously undisclosed memo, six lawyers and two analysts in the [DoJ’s Civil Rights Division] voting section found that the redistricting plan violated the Voting Rights Act by illegally diluting black and Hispanic voting power in two congressional districts, but senior Justice Department officials overruled them and approved the plan. The lawyers’ memo also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections.

Delay (R-Tex.), then the House majority leader, was a primary instigator of the redistricting. In October 2003, he was admonished by the bipartisan House ethics committee for his role in muscling the new boundaries through the Texas legislature. The committee expressed concern that DeLay had pressured the Federal Aviation Administration, the FBI and other federal agencies in 2003 to help locate Democratic legislators who had fled Texas in an effort to head off the redistricting by denying the state’s legislature a quorum.

While we may see no change in the voting districts, even after a full hearing on this matter with the Supreme Court, it is how this will play in the court of public opinion that interests me. This is especially true given the proximity of the decision to the elections.

Were I a Democratic strategist, running a non-incumbant against a Republican in just about any district in the country, I’d pull up a photo or two of the GOP candidate with the Bugman and/or with Dick Cheney and run it in a commercial nonstop in my district.

Between Fitzgerald’s investigation, the Abramoff mess, the Duke Cunningham and friends bribery hour, the mess of the war in Iraq, the forgotten misery of Katrina’s aftermath in the Gulf Coast, and the heavy-handed disenfranchisement tactics used in the gerrymandering power grab by Tom DeLay in Texas — well, it is a wealth of political fodder for the 2006 elections.

Picture the ad: "Tom DeLay only wants his crony’s votes to count. That’s why he worked so hard to dilute your vote by redrawing Texas Congressional districts to benefit his friends in the Republican party. Isn’t it enough that he’s under indictment for money laundering?"

One intriguing question in my mind is how the DoJ is going to come down on this matter with the Supreme Court, now that the internal memo has been exposed to public scrutiny. Can they argue with any sort of straight face that the government’s interest is well served by these districts, when their own professional civil rights attorneys felt so strongly that it was racially discriminatory?

My guess is yes, considering the two Texans — Gonzales and Bush (well three, really, since Dick Cheney only moved to Wyoming to get on the ticket in the first place) — making the decision haven’t had a stellar record on civil rights these past few years anyway.

One of the key questions for the Justices will be whether it is constitutional to redraw these voting district lines more than once per decade. This, I think, is the most likely question that the Supremes want to delve into more deeply. It seems to me that there is an awful lot of room for political maneuvers if you have a state where political power changes hands frequently between the parties — and a whole lot of room for instability as political retribution via redistricting takes hold.

The Texas matter seems like a good test case for this line of reasoning — and I hope that the Court gives it every consideration as a long-term problem that needs some grown-up thought, and not just some short-term political gain consideration.

The ramifications in this case are enormous. Not the least of which because this may be a case where both Chief Justice Roberts and potential Justice Alito (who has been nominated but not confirmed to replace Justice O’Conner) may hold sway. Democrats considering their vote, along with moderate Republicans (whoever they may be that haven’t had their arms twisted as yet), had best think long and hard about what this could mean for civil rights case law in the years to come.

Whatever the outcome legally, however, the political message that could come from this is also huge. Here’s hoping the Democrats are already working on their side of the story — it would be awfully nice to be out in front of a worthy cause for a change, instead of trailing along in its wake.

(The graphic first appeared in the Boston Gazette, on March 26, 1812. For a history of "gerrymandering," read here.)

UPDATE: Okay, my bad. I knew Cheney had been a Congressman from Wyoming, but was thinking about him in the "Texas oil runs in his veins, such as they are these days" context when I was writing this, and forgot to put those thoughts in writing as I finished. Sorry for the slip and any confusion it may have caused. That’s what I get for not doing a second copy-edit/read through.

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.